HERNANDEZ v. BARNHART

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Plaintiff Patricia Hernandez ("Hernandez") brings this action seeking
review of a Social Security Administration ("SSA") decision denying her
Supplemental Security Income ("SSI") benefits. The defendant,
Commissioner of Social Security, moves to dismiss the complaint pursuant
to 42 U.S.C. § 405(g) and Fed.R.Civ.P. 12(b)(6) or, alternatively,
for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that
the complaint was not timely filed. Plaintiff opposes the motion. She
contends that she is entitled to equitable tolling of the deadline for
filing her complaint in federal district court because her mental
impairment hindered her from commencing this action timely.

II. BACKGROUND

In June 1989, the SSA determined that plaintiff was disabled and, thus,
eligible for SSI
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benefits. Thereafter, in January 1998, the SSA determined that
plaintiff's disability had ceased. Consequently, in March 1998, plaintiff
stopped receiving SSI benefits.

On January 28, 1999, plaintiff, represented by counsel, appeared before
an Administrative Law Judge (ALJ) to contest the termination of her SSI
benefits. The ALJ held open the hearing record so that a consultative
psychiatric examination of plaintiff could be completed. The examination
took place in April 1999. Thereafter, on July 27, 1999, having reviewed
the medical evidence presented in the case, the ALJ issued a decision
finding that plaintiff's eligibility for SSI benefits had been correctly
terminated because her disability was correctly found to have ceased as
of January 1998. In his decision, the ALJ noted, inter alia,
that plaintiff had a limited education and was illiterate.

In an affidavit submitted in opposition to the instant motion,
plaintiff states that, since she could not read the ALJ's decision, her
attorney explained to her that her application for SSI benefits had been
denied and that he would file an appeal. Accordingly, by letter dated
August 2, 1999, and addressed to the Appeals Council of the SSA,
plaintiff's attorney requested a review of the ALJ's decision. That
request was denied on May 26, 2000. Two copies of the Appeals Council's
letter, one in English and one in Spanish, were sent to plaintiff at her
home address. A copy of the letter also was sent to plaintiff's attorney.

The Appeals Council's letter notified the plaintiff that she was
entitled to seek judicial review of its decision denying her appeal and
that she had sixty days from the date of the receipt of the letter in
which to commence a civil action. The letter also informed her that the
Appeals Council would assume she had received its letter five days after
the date on the letter. Additionally, the letter notified plaintiff that,
upon a showing of good cause, the Appeals Council
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could extend the time in which to commence an action in federal
district court.

In her complaint, plaintiff states that she received the Appeals
Council's letter on May 31, 2000. In her affidavit, plaintiff avers that
her attorney explained to her that "this was another denial decision" and
that "he was no longer my attorney." Plaintiff states that she "did not
know what to do next" and asked a friend to read her the Appeals
Council's letter. According to plaintiff, she was told that the letter
"mentioned the SSA." Plaintiff then went to her local SSA district office
where she filed a new application for benefits.*fn1

By law, plaintiff had sixty (60) days to commence a civil action from
the date she received the Appeals Council's letter, which was presumed to
be five days after the letter was dated. See
42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). Since the Appeals Council's letter
was dated May 26, 2000, plaintiff had until July 31, 2000, to file her
complaint within the sixty-five-day time limit.

However, plaintiff, who avers that she did not learn that she might
obtain legal assistance until after the filing deadline had passed, did
not file her complaint until January 3, 2001. On that date, plaintiff met
with an attorney employed by MFY Legal Services ("MFY"). Plaintiff avers
that the attorney advised her that her complaint was no longer timely,
but that she might have "good cause to file a late appeal." In any case,
the MFY attorney assisted plaintiff to prepare a complaint and then
directed her to the Pro Se Office for this judicial district. Plaintiff's
complaint was filed the same day.
Page 4

Thereafter, on February 26, 2001, an attorney employed by MFY submitted
a letter to the Appeals Council on plaintiff's behalf requesting an
extension of the time in which to file her complaint, as well as a
finding of good cause for the late filing. Attached to the letter were:
(i) a psychiatric report prepared by Dr. Richard Mayer, a psychiatrist
employed at YAI Premier Health Care; (ii) a "Checklist of Function
Limitations Resulting from a Mental/Intellectual Impairment," also
prepared by Dr. Mayer; and (iii) a comprehensive psychosocial evaluation,
dated July 25, 2000, prepared by Allison Lindner, a certified social
worker employed at the YAI Center for Specialty Therapy.

These documents indicate, inter alia, that plaintiff was
determined to be functioning "within the mild to moderate range of mental
retardation," and that recommended services included "individual
psychotherapy . . . to discuss her anxiety and reduce anxious behavior."
The documents also indicate that plaintiff was found to suffer from
depressive and anxiety disorders: her mood was found to be "easily
anxious/depressed" and her affect "easily changeable, easily frustrated."
In addition, plaintiff was found by her medical examiners to have
impaired judgment as a result of her anxiety and a marked limitation in
activities of daily living and social functioning, and to be unable to
travel alone or to read or write. Furthermore, in his report, Dr. Mayer
stated that plaintiff's "psychiatric disorder is longstanding and her
mental retardation is permanent." Regarding plaintiff's ability to make
occupational adjustments, Dr. Mayer stated that "[g]iven her mental
retardation . . . she is emotionally and cognitively impaired in this."

On March 20, 2001, Chief Judge Michael Mukasey issued an order
directing plaintiff to file an amended complaint explaining why she had
not commenced a civil action in federal court within sixty (60) days, as
provided in the letter she had received from the Appeals Council. All
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further proceedings were stayed pending plaintiffs compliance with
the order. In April 2001, the ...

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